American journal of law & medicine
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In 1977, the Supreme Judicial Court of Massachusetts held in the Saikewicz case that the probate court is the proper tribunal for making decisions whether to give or withhold "life-prolonging treatment" for terminally ill incompetent patients. This ruling provoked debate in the medical and legal communities. Dr. ⋯ Besides evaluating and responding to the Relman and Baron approaches, Buchanan examines the contribution to the Saikewicz debate made by law-and-medicine professor George Annas. In essence, Buchanan rejects Annas's argument that, taken together, the Saikewicz opinion and the Quinlan opinion of the Supreme Court of New Jersey delineate a proper division of medical and legal decision-making responsibility concerning terminally ill incompetents. Buchanan concludes that, contrary to Annas's view, those two cases are not reconcilable.
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One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals--sometimes with the assistance of the patient's family--on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. ⋯ They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed. It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decision-making process that remain to be resolved.
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Over the past three years, a great volume of legislation on abortion has been produced by state legislatures in an attempt to fill the vacuum created by the United States Supreme Court's 1973 decision in Roe v. Wade. This Article examines several of the most common types of statutory provisions and assesses their constitutionality in light of Roe v. Wade and other applicable federal and state legal standards.